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Evading evasion How protocols can improve civil case results.

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A ternatives
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TO THE HIGH COSTS OF LITIGATION
CPR INSTITUTE FOR DISPUTE RESOLUTION
NEGOTIATION
“Litigants and lawyers can benefit
from the development of a somewhat
standardized negotiation protocol,”
writes John Lande of Columbia, Mo.
He proposes ways of constructing a
protocol, based on collaborative law
practice. ..............................
Page 149
ADR SKILLS
Jeff Kichaven, of Los Angeles, and
Deborah Rothman, of Santa Monica,
Calif., get the views of mediators on
court mediation, and how to get past
client skepticism about ADR
Page 149
participation. ....................
CPR NEWS
Last call for CPR’s first fall meeting;
the annual CPR awards competition
is open; last year’s Drafter’s
Deskbook has a new supplement out
this month, and more. ...... Page 150
ADR COUNSEL I N BOX
In a special feature, the 15th in the In
Box series, CPRs Kathleen M. Scanlon
revisits an arbitration rules comparison
between CPR and the American
Arbitration Association, in light of this
summer’s AAA revisions. ..... Page 151
ADR BRIEF
Details on two federal circuit court
cases-both of which already are
being appealed-on the scope of
judicial review for arbitration
Page 161
awards. ...............................
DEPARTMENTS
CPR News ........................
Page
ADR Briefs .......................
Page
Cartoon by Cullum .......... Page
Online Info ........... Page 1 6 7 &
Index Info .............Page 164 &
Comparison Chort
150
161
161
168
167
VOL. 2 1 NO. 8 SEPTEMBER 2003
Evading Evasion: How Protocols
Can Improve Civil Case Results
BY JOHN LANDE
Almost everyone familiar with the legal system knows that only a tiny fraction of legal
cases are tried. Though most negotiators eventually muddle through to reach
settlement, often the process is not
pretty and the resolution is less
than optimal.
How can negotiators settle
sooner, more efficiently,and more
wisely?This article argues for the
development of a negotiation protocol to help lawyers and parties
negotiate cooperatively. Such a
protocol would build on previous efforts to
promote these goals.
Some businesses and law firms have instituted early screening processes to evaluate
each case at the outset and develop early resolution plans. See Catherine Cronin-Harris,
“Building ADR into the Corporate Law Department: ADR Systems Design” (CPR In-
ment counsel,” or “resolution
counsel” who have the sole
function of negotiating settlement. See James E. McGuire,
“Why Litigators Should Use
Settlement Counsel,” 18Alternatives 107 (June 2000).
proaches unilaterally and don’t require the
cooperation of the others to attempt settlement. Although these processes often do pro(continued on page 163)
Lawyers Speak Out on Justifying
Court Mediation to their Clients
BY JEFF KICHAVEN AND
DEBORAH ROTHMAN
Question: Is there still a need for COUrt-Ordered mediation, or can we simply rely on
the marketplace to determine
what cases get mediated, and
when?
Answer: In commercial cases,
“yes,” for reasons that might surprise you. In employment cases,
‘‘no,’’with an exception that might
surprise you. And, for all cases, a
caveat that should not surpriseyou.
In commercial cases, the conventional
wisdom is that suggesting mediation might
be perceived as a sign of weakness. To a certain extent, the ubiquity of mediation has
diminished this concern. As James K. Lee, a
litigation partner in the Los Angeles office of
Alun Gump Strauss Hauer & Feld, and a past
board member and officer of the KoreanAmerican Bar Association of Southern California says, “If I think mediation is
appropriate, I recommend it. I
have no concern that anyone
will think I am not aggressive
enough.”
But Jonathan H. Anschell,
a partner in Los Angeles’s White
O’Connor Curry & Avanzado
says that the concerns linger:
“There is always a risk that beingthe one to move first could be misperceived
as a sign ofweakness. A court order to mediate
takes that risk away”
Now the surprising part: The risk is not
so much that the suggestion of mediation will
(continued on page 165)
CPR NEWS
(continued from page 160)
attending the training for the special
CorneUICR Institute program on corporate conflict management systems.
The special program will be held on
Oct.8. It consists of a three-hour forum in which Richard Fincher and
Ronald L. Seeber of the CornelVICR
Institute will present research findings
on factors that motivate companies to
develop ADR systems, and discuss development issues, problems and strategies. The corporate conflict management systems program will have a
second segment of individualized, confidential, discussions with the Cornell/
ICR experts regarding individual
company’s programs.
Registration for the forum costs
$300 and the individual consultations
are $400. Registration for both segments is $600.
Please call CPR at (212) 949-6490
for more information on the special
session, or see the CPR Web site. i
NEW YORK’S MEDIATION
SETTLEMENT DAY
CPR is a cosponsor of the New York
state COUK system’s third annual Mediation Settlement Day.
The Oct.30 event is designed to
promote mediation use by educating
state residents, businesses and court
system employees. It is sponsored by the
Association of the Bar of the City of
New York, New York bar associations,
the New York State Unified COUK
System, state courts, federal agencies, and
a variety of alternative dispute resolution programs, organizations and providers throughout the state.
The events will be introduced at an
Oct. 21 ceremony featuring former
U.S. Attorney General Janet Reno, in
New York City, accompanied by a proclamation by New York Mayor Michael
Bloomberg emphasizing the importance of mediation in conflict resolution.
Reno will serve as honorary chairwoman
of this year’s events.
The programs, still beiig formulated
at press time, are expected to indude the
availability of extra mediators in courts
statewide to help settle cases, and training and educational programs.
i
Evading Evasion: How Protocols
Can Improve Civil Case Results
(continued from front page)
mote constructive settlement, negotiation is
likely to be more productive when all the
parties actively cooperate.
Opposing parties develop negotiation procedures on an ad hoc basis in some complex
civil cases and large multiparty processes, such
as those used in public policy conflicts and
regulatory negotiations.
The CPR Pledge (see www.cpradr.org/
pledges.htm) is a systematic effort to promote
cooperative dispute resolution. Businesses and
law firms that have subscribed to the CPR
Pledge commit to “seriouslyexplore negotiation, mediation or other ADR processes in
conflicts arising with other signatories before
pursuing full-scale litigation.” This is good as
far as it goes but it does not provide specific
mechanisms for structuring such dispute resolution processes.
As a logical extension of the CPR Pledge,
collaborativelaw-referred to in this article as
CL-protocols that have been used primarily
in family law cases can be adapted to structure
cooperativenegotiation in civil, nonfamily, litigation. See Pauline H. Tesler, “Collaborative
Law Neutrals Produce Better Resolutions,”2 1
Alternatives 1 (January 2003).
PRACTICE E LEM ENTS
Major elements of collaborative family law
practice include:
the development of local negotiation protocols and required training in CL techniques;
a signed agreement by the litigants and
lawyers committing to initial and exclusive
effort to negotiate in good faith and without
a litigation threat;
the extensive participation ofparties and
lawyers in “four-way”meetings, i.e., with all
parties and lawyers participating actively;
of all relevant information;
the use of interest-based negotiation;
an agreement that all collaborative lawyers are disqualified from litigating in cases
in which they act as collaborativelawyers (referred to here as the “disqualification agreement”);
an agreement to retain any experts jointly
and as neutrals who usuallywould be disqualified from participating in litigation of the case.
To promote collaborative family law, practitioners have organized at least 87 local and
regional groups in 25 states and many Canadian provinces. These groups establish local
refinements of the negotiation protocol, provide continuing CL techniques training, and
promote CL practice and culture.
Litigants and lawyers can benefit from the
development of a somewhat standardized negotiation protocol like this in several ways.
Having a preestablished negotiation protocol
legitimizes negotiation and can makes it easier
to initiate without appearing weak. Standardized procedures can reduce the need for ad hoc
procedural negotiation about how to conduct
negotiations, for example, about exchanging
information. To the extent that negotiators
need to customize negotiation procedures, a
standardized protocol can provide a template
of procedural issues to discuss.
Moreover, negotiation protocols can include provisions to avoid or address predictable problems that can sabotage substantive
negotiations. A standardized negotiation protocol also can promote a positive legal culture that encourages cooperative approaches
to negotiation more generally. See Ronald J.
Gilson & Robert H. Mnookin, “Disputing
Through Agents: Cooperation and Conflict
Between Lawyers in Litigation,” 94 Colum.
L. Rev. 509 (1994).
an agreement to provide full disclosure
PROTOCOLS AND TRAINING
John Lande i s an associate professor and director
of the LL.M. Program i n Dispute Resolution at the
University of Missouri-Columbia School of Law. This
article is based on ”Possibilities for Collaborative
Law: Ethics and Practice of Lawyer Disqualification
and Process Control i n a New Model of Lawyering,”
which will be published i n 64 Ohio State Law Journal, issue 5 (November 2003). He thanks Sheldon
Finman, Dwight Golann, James K.L. Lawrence, John
Phillips, Leonard Riskin, Sherri Goren Slovin, and
Hugh Starnes for their helpful comments on a draft
of this article. This article does not necessarily reflect their views.
Because family law cases differ from other civil
cases, collaborativefamilylaw negotiation protocols must be adapted to be useful in major
civil cases. In family cases, the parties are individuals while many civil cases involve organizational dynamics within major businesses.
Moreover, family lawyers generally operate in local communities and, by contrast,
many civil litigators operate in regional, na(continued on following page)
Lvading Lvasion:
CPR Protocols
(continued from previous page)
tional, and even international practice communities. Thus rather than having local
groups of CL lawyers develop practice and
training protocols, it is more appropriate to
have national or international groups do so.
Much as the CPR Institute and other groups
have developed dispute resolution contract
clauses, mediation standards, and arbitration
rules (see CPR’s Model ADR Procedures and
Practices, www.cpradr.org/mapps.htm), they
can develop negotiation protocols. CPR,
which publishes this newsletter, would be
especiallyappropriate to develop such protocols and offer training, given its experience
developing and promoting the ADR pledge
and its extensive network of businesses and
law firms engaged in advancing dispute resolution practice.
Drafters of a general negotiation protocol
for civil litigation might use CL procedures
as a starting point and adapt them, considering the issues discussed below. Note that,
collaborative law trainers and practitioners
want to reserve the term “collaborative law”
for processes with features described above,
especially the disqualification agreement.
Practitionerswho use variations on these techniques often refer to the variations as “cooperative” law or negotiation.
Creating a Constructive Environment and
KeepingNegotiationFrom Breaking Down. The
CL disqualificationagreement, referred to here
as DA, is designed to keep litigants and lawyers focused on negotiation constructivelyand
to inhibit them from resorting to litigation as
soon as they have difficulties in negotiation.
The 1996-2002
indexes are posted at the
Alternatives link
at www.cpradr.org/
publicat/htm.
Newer and back issues are
searchable on Westlaw@
and Lexis-Nexis@.
See back page for details.
CL proponents argue that lawyers are so
used to litigating that a DA is needed to keep
them from threatening or actually using litigation. Moreover, a DA can give lawyers a ready
rationale for resisting clients’ demands to litigate when they feel frustrated in negotiation.
Although a negotiation protocol for civil
cases might include an option to use a DA,
the protocol would be most helpful by developing alternative procedures to accomplish
the same objectives.
Although CL family lawyers have represented clients with agreements including a
DA, the agreements are a major barrier for
civil litigants and lawyers from engaging in
CL. Family lawyers usually have many, relatively small cases with “one-shot” clients and
thus can afford to ‘‘lose’’cases and clients if
they do not settle.
By contrast, civil litigators generally have
a small number of relatively large cases with
repeat-player clients. Law firms serving major civil clients would almost never risk losing a litigation client to another firm due to a
DA. And many clients would not want to
risk losing the investment in educating their
lawyers and their relationship of trust in their
lawyers if they need to litigate. CL lawyers
have promoted CL for nonfamily cases, but
apparently very few civil litigants have used
the process so far.
CL theorists are correct to identify potential problems of ready defection from negotiation to litigation. Once one side escalates
the adversarial tensions, it is hard to de-escalate promptly and resume productive negotiations. To accomplish the same goal as the
DA, negotiators could agree to “cooling off”
periods (of say a few days or weeks) to prevent cycles of unconsidered escalation.
Borrowing a concept from partnering procedures-see Frank Carr, “Partnering, With
a ‘Ladder,’ Sustains Government Contracting,” 19Alternatives191 (September2001)litigants could agree to consult with higher
authorities in their organizations if they cannot resolve an impasse within specified periods of time. Litigants also could agree to
engage a neutral such as a mediator, evaluator, or arbitrator to keep the negotiation on
track or to resolve particular issues.
Undoubtedly lawyers can develop a checklist of other procedures to work together to
help parties “hang in” through tough times
in negotiation while always retaining the litigation option.
*Promoting Good Faith Negotiation. Negotiation is most productive if negotiators
act in good faith. Although it is tempting to
promote good faith negotiation by creating
an enforceable legal requirement, careful
analysis shows that such requirements can
be counterproductive because they can be
evaded easily and, ironically, used to undermine good faith negotiation. See John
Lande, “Using Dispute System Design
Methods to Promote Good-Faith Participation in Court-Connected Mediation Programs,” 50 UCLA L. Rev. 69 (2002).
[Editor‘s note: The author’s UCLA Law Review article received honorable mention in
the professional articles category of last year’s
CPR Awards for Excellence in ADR. See
www.cpradr.org/awards99.htm.]
Drafters of a negotiation protocol might
include a provision in which negotiators
commit to honest negotiation but make clear
that it does not create a legal obligation that
might generate additional issues to litigate.
eEficientlyExchanging Information. Negotiators need sufficient information to be willing and able to settle disputes intelligently.
Discovery overkill has been a major problem
in litigation because it drives up costs, prolongs the process, and generates additional
disputes. Although the CL protocol of ‘‘full
disclosure” of all relevant information can
work well in family cases, it is likely to be
counterproductive in large civil cases as it
would reproduce problems in litigation rather
than avoid them. Thus a negotiation protocol could be designed to help litigants efficiently exchange the critical information and
avoid exchanging less important information
(or at least postpone doing so until it is clearly
needed).
Drafters of a negotiation protocol might
consider experience with Rule 26 of the Federal Rules of Civil Procedure, which requires
litigants to disclose certain information without a specific request from other parties.
Obviously this rule was adopted for use in
litigation and would need to be adapted to
produce good results in negotiation.
Wisely UsingExperts. In many cases, negotiators need input from experts to make good
decisions in negotiation.The collaborative fmily law model provides that experts must be
neutral, hired jointly, and disqualified from
participating in litigation. In some CL groups,
the parties may agree to allow experts to participate in litigation. This arrangement is intended to avoid incentivesfor experts’ slanting
their opinions for partisan advantage and to
prevent costly battles of the experts. A nego(continued on following page)
tiation protocol for civil cases might use a similar approach and establish it as the norm. In
some cases, the negotiators may prefer to hire
some experts separatelyand a negotiation protocol might provide for an early discussion
about how experts would be retained and how
their products would be used.
UsingProblem-SolvingNegotiation. Problem-solving negotiation, or PSN, which
sometimes is called interest-based negotiation,
involves identifying the parties’ interests and
the options for satisfying those interests and
then selecting options that satisfy important
interests of all parties. Because this approach
porated into negotiation protocols and
trainings.
*CreatingIncentives to Negotiate. Negotiation protocols may help develop and legitimize incentive structures encouraging early
cooperative negotiation. Law firms have
strong incentives to litigate cases extensively.
Many lawyers believe that they have a professional duty to represent clients thoroughly,
which may involve extensive factual discovery, legal research, and litigation tactics to gain
strategic advantages for their clients. Indeed,
some lawyers are concerned that they could
be liable for malpractice if they do not take
Drafters of negotiation protocols can develop
lawyer compensation models, creating incentives
t o encourage litigants and their lawyers t o use
cooperative negotiation processes.
involves sharing information about parties’
interests and generating creative solutions, it
can create value and not merely distribute
value between the parties.
Despite the great potential benefits as well
as research showing that most lawyers would
like to use PSN, many negotiators do not do
so. When one side unilaterally discloses its
real interests, it becomes vulnerable to the
other side exploiting the information for partisan advantage. In addition, the traditional
positional approach of exchanging offers is
so deeply embedded in U.S. negotiations that
negotiators typically use the traditional approach out of habit.
A negotiation protocol could promote
PSN use in several ways. Given the strong
norms of using positional negotiation and the
risks of unilateral disclosure, negotiators normally will use PSN only by making a conscious and joint decision to do so. Negotiation
protocols designating it as the presumptive
first choice can prompt negotiators to seriously consider using it rather than habitually
using traditional methods. Although negotiators ultimately may prefer to use methods
other than PSN, it makes sense to encourage
them to consider using it at the outset of every negotiation. “Getting to Yes,” by Roger
Fisher, William Ury, and Bruce Patton, and
its progeny, provide helpful suggestions for
persuading negotiators to overcome reluctance to use PSN. These ideas can be incor-
every legitimate action on behalf of their clients.
Lawyers paid on an hourly basis also have a
financial self-interest to prolong litigation to
maximize their fees. Some litigants also have
strong interests promoting extensive litigation.
They may get a strategicadvantage by wearing
down and “waiting out” opponents to gain
substantial concessions. Some litigants--and
especially executives personally involved in the
litigation for their firms-may have strong
emotional interestsin being vindicated in court
or having courts take responsibility for making adverse decisions. Even lawyers and litigants who generally believe in using ADR are
sometimes reluctant to use ADR methods in
their particular cases for the reasons described
above. Thus efforts to use early and efficient
negotiation techniques often need to overcome
substantial barriers. See “Inside the Law Firm:
Dealing with Financial Disincentives to ADR,”
17 Alternatives 43 (March 1999).
Savvy litigants-and particularly their
general counsel-often are the ones who take
the lead to overcome these barriers by developing early case screening and ADR programs
to resolve cases as efficiently and wisely as
possible. These litigants typically communicate their expectations to their law firms which
have strong incentives to satisfy those expectations, both as a matter of professional responsibility and self-interest in keeping the
clients’ business.
Litigants may induce more cooperation
from their lawyers in promoting early cooperative negotiation efforts by crafting lawyer
compensation schemes that share with the
lawyers the benefits of early resolution. Drafters of negotiation protocols can develop and
legitimize lawyer compensation models, creating incentives to encourage litigants and
their lawyers to use cooperative negotiation
processes. See, e.g., Peter D. Zeughauser,
“Price & Product: A Proposal for a Focused
ADR Structure,” 15Alternatives 141 (November 1997). Drafters might produce a menu
of compensation structures so that litigants
and lawyers can choose among various models that best fit in different situations.
Presumably each litigant and its lawyers
negotiate their own lawyer compensation arrangements independent of the opposing
parties. Nevertheless, litigants can demonstrate commitments to cooperative negotiation by using such compensation schemes,
informing the other side of the arrangement
(at least in general terms), and inviting the
other side to use similar compensation arrangements. Although the litigants would be
free to pursue litigation at any time, such
parallel compensation arrangements could
create powerful incentives to resolve disputes
through cooperative negotiation.
*
*
*
Too many cases settle only “on the courthouse
steps” or after lengthy and expensive pre-trial
litigation that diverts productive energy, damages relationships, and tarnishes reputations.
Given the prevalence of negotiation, it is surprising that there are few or no protocols promoting early, cooperative, and wise
negotiation procedures comparableto dispute
resolution contract clauses, mediation standards, and arbitration rules.
One can compare a pledge to use ADR to
saying, “Let‘s have lunch sometime.” Even
when sincere, the suggestion is easy to forget
or evade. A more detailed negotiation protocol might be like a reminder from a computer
calendar that includes a list of preselected restaurants and tasty dishes. It would not guarantee an actual lunch date, but it can make it
much more likely and satisfying.
Organizations like CPR can make a significant contribution to litigants, lawyers,
courts, the ADR field, and the public by engaging representatives of all the stakeholder
groups to develop negotiation protocols,
trainings, and other mechanisms to prsmote
*
their use.
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